Filed 6/7/22 P. v. Lopez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Katrina West and Daniel W. Detienne, Judges. Reversed and remanded with directions.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Arlene A. Sevidal and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

In 2013, defendant and appellant Maria Lopez pled no contest to attempted second degree murder (Pen. Code,^[1] §§ 664/187, subd. (a)), and admitted the personal use of a firearm (§ 12022.5, subd. (a)) allegation. In exchange for her plea, the remaining allegations were dismissed, and defendant was sentenced to a stipulated term of 13 years in state prison.

In April 2021, after she was released from custody, defendant filed a petition to expunge her case under Assembly Bill No. 2147 and section 1203.4b, which gives trial courts the discretion to grant such relief to certain defendants, such as those who have successfully participated in the California Conservation Camp Program (fire camp). The trial court thereafter appointed counsel and held a hearing on the petition. Following an in-chambers conference, the court denied the petition, believing it did not have discretion to grant defendant relief due to her attempted murder conviction.

On appeal, defendant contends the trial court erred when it believed it lacked discretion to grant relief under section 1203.4b. She requests that this court grant her relief under the statute because the trial court “clearly indicated” it would have granted relief if it had discretion to do so. Alternatively, she asks us to remand the matter with directions to allow the trial court to reconsider her petition. The People agree that the matter should be remanded for the trial court to consider whether to exercise its discretion to grant relief. We agree with the parties. Accordingly, we reverse the order denying defendant’s section 1203.4b petition, and remand the matter to the lower court to exercise its discretion in the first instance on whether to grant defendant relief under the statute.

II.^[2]

DISCUSSION

We review questions of statutory interpretation de novo. (People v. Lewis (2021) 11 Cal.5th 952, 961.) As with any case involving statutory interpretation, our primary goal is to ascertain and effectuate the Legislature’s intent. (Ibid.; People v. Park (2013) 56 Cal.4th 782, 796.) We begin by examining the statute’s words, as the most reliable indicator of legislative intent, giving them a plain and commonsense meaning. (Lewis, supra, at p. 961; People v. Law (2020) 48 Cal.App.5th 811, 819.) “‘“[W]e look to ‘the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’”’” (Lewis, supra, at p. 961.) “‘If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.’” (Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1125.)

Assembly Bill No. 2147, approved by the Governor on September 11, 2020, became effective January 1, 2021 and added section 1203.4b to the Penal Code. This section allows, “a defendant who successfully participated in the California Conservation Camp Program or a county incarcerated individual hand crew as an incarcerated individual hand crew member, and has been released from custody, to petition to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty.” (§ 1203.4b, subd. (a)(1).)

Once such a petition is filed and “the requirements of this section are met,” the trial court “in its discretion and in the interest of justice, may permit the defendant to withdraw the plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if the defendant has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty, and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which the defendant has been convicted, except as provided in [s]ection 13555 of the Vehicle Code.” (§ 1203.4b, subd. (c)(1).)

Defendants who have been convicted of the following enumerated offenses are automatically ineligible for relief: murder, kidnapping, rape, lewd acts on a child under 14 years of age, any felony punishable by death or imprisonment in state prison for life, any sex offense requiring registration, escape from a secure perimeter within the past 10 years, and arson. (§ 1203.4b, subd. (a)(1)(A)-(H).) The statute does not explicitly preclude convictions for attempted murder or attempts of any other prohibited offense. (See § 1203.4b.)

Examining the words of the statute, giving them a plain and commonsense meaning, defendant’s conviction for attempted second degree murder does not automatically render her ineligible for relief under section 1203.4b. Attempted murder is not among the enumerated prohibited offenses, and it is not a felony that is punishable by death or imprisonment in state prison for life. (See §§ 1203.4b, subd. (a)(1)(A)-(H), 664, subd. (a).) Furthermore, as noted by the parties, neither the legislative history of the bill nor its subsequent amendments indicate that the Legislature intended to preclude relief under section 1203.4b to those convicted of attempted murder or attempts of any other prohibited offense. (See Assem. Bill No. 2147 (2019-2020 Reg. Sess.) § 1, amended by Sen. Bill No. 827 (2021-2022 Reg. Sess.) Sept. 30, 2021 and Assem. Bill No. 1281 (2021-2022 Reg. Sess.) Sept. 22, 2021.)

Had the legislature intended to prevent defendants convicted of attempted violations of the enumerated ineligible offenses from obtaining relief under section 1203.4b, “the legislature would have said so.” (People v. Lewis (2006) 146 Cal.App.4th 294, 297-298 [trial court erred in denying the defendant’s motion for expungement relief under section 1203.4 because that section precludes relief for convictions of lewd acts on child (among other crimes), but defendant pleaded guilty to attempted lewd acts on child].) Furthermore, there is a fundamental difference between the completed crime of murder and the crime of attempted murder. The distinction between murder and attempted murder is not merely a matter of semantics: Murder and attempted murder are separate crimes. (See People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“t is well established that ‘“[a]n attempt is an offense ‘separate’ and ‘distinct’ from the completed crime”’”]; [i]People v. Lewis, supra, 146 Cal.App.4th at p. 298 [same]; People v. Reed (2005) 129 Cal.App.4th 1281, 1283 [same].)

Here, at the hearing on the petition, the trial court stated that it had read and considered the probation officer’s report and certain documents submitted by defense counsel. The probation officer’s report indicates that defendant did not have any new arrests or pending cases and that she was not currently on probation or parole. The probation officer referred the matter to the trial court for a determination of eligibility for relief. The court noted that while section 1203.4b does not apply to murder, it “does not address attempted murder.” Based on its review of the statute and available case law, the court stated that it believed it did not “have the authority to grant the request,” despite the paperwork submitted by defense counsel showing defendant had “performed very, very well during her incarceration” in “prison and fire camp.” The court, therefore, “sadly” denied the request for relief. The court stated that it would keep the documents submitted by defense counsel for the record, “should [defendant] decide to appeal it, so we can get some guidance in this area.”^[3]

Because the trial court erroneously believed that it did not have discretion to grant relief under section 1203.4b and because the court must first make the determination in the first instance with an informed decision, we conclude the matter must be remanded to the lower court to consider whether to grant defendant’s requested relief under section 1203.4b.

III.

DISPOSITION

The order denying defendant’s section 1203.4b petition is reversed. The matter is remanded to the trial court for further proceedings in accordance with the directions in this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

MILLER

J.

^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is not relevant to the legal issue raised on appeal. We thus will not recount those details.

^[3] The record on appeal does not contain these documents. After defendant’s appellate counsel’s motion to augment the record, the clerk of the superior court stated in an affidavit that it could not locate or obtain the referenced documents.